The answer to the question as to what could be transferred under Transfer Property Act, 1882 is enumerated under section 6 of the said act. The section says anything can be transferred except the 9 situations defined therein. One of those clause i.e., clause a speaks about the rule of Spes Successionis. The bare words of this clause are as:
6(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;
The Act herein uses the expression “chance” and ” heir apparent” and not heir. The term “apparent” indicates a probability or the possibility, and transfers that are based on bare chances or possibilities are not permissible. The term ‘heir apparent’ is an English term and is based on the maxim nemo est heres viventis which means that a living person does not have any heir. An heir is a person who succeeds to the property of another on his death if such person Wills the property to him, or dies intestate. The chance of an heir apparent to succeed to the property of an intestate therefore cannot be transferred. This chance is also referred to as spes successionis. If a person transfers this chance, the status of this transfer in law is void ab initio. It does not convey any right in favour of the transferee, even if the transferor who transfers a chance may, in fact, become the owner of the same property in future.
The rule incorporated in this section governs transfers where the transferor, to begin with, has no capacity to transfer the property, yet has entered into the transaction with a misrepresentation with respect to his title to the property. In such cases if the contract is subsisting and the property is available, then it gives the transferee the option to either go ahead with the transfer, or to rescind the same Here, the willingness of the transferor to go ahead with transfer is immaterial and it is solely on the wishes of the transferee, which he has to show by exercising the option that the transfer shall become valid.
The essential ingredients of section 43 are as follows:
- The transferor makes a representation to the effect that he is competent to transfer a particular piece of immovable property;
- This representation may be erroneous or fraudulent;
- This representation is not true;
- The transferee believes or is made to believe that the representation is correct and the transferor is competent to transfer the property, i.e., he does not know the defect in title or lack of capacity on part of the transferor;
- The transferor professes to transfer the property for a consideration;
- The transferee acts on the representation and enters into the contract;
- The transferor subsequently acquires competency to transfer the same property;
- The contract is subsisting;
- The property is still with the transferor, i.e., he has not transferred it to a bona fide purchaser who takes it without actual or constructive notice of this earlier contract between the transferor and the transferee;
- The transferee exercises the option to signify his intention to go ahead with the contract;
The transfer shall become valid and enforceable in a court of law.
DISTINCTION BETWEEN Spes Successionis and The RULE OF ESTOPPEL u/s 43
The rule of feeding the grant by estoppel has to be compared and contrasted with the rule of spes successionis provided under section 6(a) of the Act. They appear to relate to similar kinds of situations but with different consequences. In fact not only do they relate to different situations, they are also inherently different.
The primary differences between section 6(a) and section 43 are as follows:
- Section 6(a) enacts a rule of substantive law, while section 43 incorporates a rule of estoppel.
- The doctrine of spes successionis applies both to movable and immovable properties, while the rule of estoppel under section 43 applies only in case of transfer of immovable property.
- Section 43 applies only in those cases, where the transfer is for consideration. It does not apply to gratuitous transfers. On the other hand, the prohibition under section 6 (a) applies to all kinds of transfers, irrespective of whether they are for consideration or gratuitous transfers. A gift of property that a person hopes to inherit is also void.
- Under section 6(a), the fact that it is a transfer of spes successions is within the knowledge of both the transferor as well as the transferee. There is no misrepresentation from the side of the transferor about his competency to pass a good title in present to the transferee. Under section 43, due to an express representation, fraudulent or even erroneous, the transferee, at the behest of the transferor, is assured of a good title. The transferee had no knowledge about the defect or lack of title on part of the transferor.
- The status of a transfer under section 6(a) is void in its inception, i.e., void ab initio, However, under section 43, the transfer is voidable at the option of the transferee provided two conditions are satisfied. First, that the contract should be subsisting at the time the transferor attains competency to transfer the property, i.e., it should not have been rescinded or brought to an end and secondly the property should be available with the transferor. It should not be in the hands of a bona fide transferee for value.